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DENNISLAW [1971]DLCA2578

ANNIN

vs.

THE REPUBLIC

[COURT OF APPEAL]

[1972] 1 GLR 354

DATE: 21 DECEMBER 1971.

COUNSEL:

CUDJOE FOR THE APPELLANT.

V. E. A. KISSEIH, PRINCIPAL STATE ATTORNEY, FOR THE RESPONDENT.

CORAM:

AZU CRABBE J.S.C., LASSEY AND SOWAH JJ.A.

JUDGMENT OF SOWAH J.A.

After hearing counsel for the appellant, a policeman, the appeal was dismissed
without calling for the Republic as there was not much merit in the appeal; further
the only ground of law argued has been the subject-matter of constant
pronouncements in these courts and, but for respect to counsel no useful purpose
would be served by reiterating those principles.

Shortly, the facts are that the appellant had been convicted of the carnal knowledge
without her consent of a young school girl, Miss Mary Acquah. The rape was
committed in the room of the appellant in the Police Depot, Accra. There was
overwhelming evidence that Mary Acquah was on her way home from school with
her friends when she was invited by Miss Elizabeth Quaye, a police woman. The
children described her as a very stout police woman. She then took the complainant
to her room; subsequently she asked the complainant to accompany her to a room
which turned out to be the appellant’s; after discussion between the two police
officers, that is the appellant and Miss Quaye, the latter left, leaving the complainant
and the appellant. There followed a short struggle in the room, but the appellant
overpowered and debauched the complainant.

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Thereafter she left the room, but it appears in her desperation she left behind her
school books. She joined her friend who were at the time waiting for her; while
narrating her ordeal to them, the police woman, Miss Quaye brought her books to
her; she must have collected the books from the appellant’s room.

Quite apart of the school children’s evidence on this aspect of the matter, a police
sergeant (Albert Agyemang Ayerter the fourth prosecution witness) observed the
movements of Miss Quaye after the girl had left the room. This sergeant saw the girl
crying and questioned her.

It was contended as a matter of law that the police woman was a material witness
who ought to have been called by the prosecution and failure to do so vitiated the
conviction. The point is too well settled to admit of any argument. The evidence
manifested that Police Constable Elizabeth Quaye facilitated the commission of a
crime to wit, rape; it was in response to her invitation that the young girl entered
the room of the appellant for sexual intercourse to proceed. Later she collected the
school books of the girl and handed them over to her.

On these facts she was guilty of an offence and were the prosecution disposed to
indict her, she would have been properly convicted of it. Such a person if placed in
the witness-box might either incriminate herself or commit deliberate prejury. In
either case she would be a wholly unreliable witness. The prosecution was therefore
right in exercising its discretion in not calling upon her to give evidence.

In Yeboah v. R. (1954) 14 W.A.C.A. 484 at p. 486 Coussey J.A. pronounced the law
thus:
“It is also said that some witnesses at the preliminary investigation, whose names
appear as witnesses for the prosecution endorsed on the information and whose
evidence conflicted with other prosecution witnesses, were not called by the
prosecution at the trial or offered for cross-examination by the defence. As to the first
point, it is undoubtedly the duty of a prosecutor, as far as is reasonable and possible,
to call all witnesses who are present at the commission of a crime and who can give
material information, the only legitimate object being not to secure a conviction, but
to see to it that justice be done. But a prosecutor is relieved from calling such witness
if he has a reasonable belief that the witness would not speak the truth and that his
statement is untrue.”

Yeboah’s case was followed by Twumasi-Ankrah v. R. (1955) 14 W.A.C.A. 673

where at p. 675 Coussey J.A. again stated:

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“The first submission on behalf of the appellant was that the trial Judge erred in not
directing the prosecution to call two eye-witnesses in the room who were thereupon
called by the defence. These men were both adherents of the appellant. It was proved
that one of them, Asamoah, shouted out ‘kill him’ to encourage the appellant as he
was about to attack the deceased. This Court held in Regina v. Kwabena Yeboah
[supra] that a prosecutor is relieved from calling a witness at the commission of a
crime if he has a reasonable belief that the witness will not speak the truth. ... As was
stated by Eric, J. in Regina v. Edwards and Others (3 Cox C.C. 82 at p. 83),
‘Counsel for the prosecution is a minister of public justice and is called upon to lay
such facts before the jury as he thinks the interests of justice demand’.”

I do not think these pronouncements fetter the discretion of any prosecutor in the
manner in which he shall conduct his case and as to the persons he shall call to give
evidence.

Speaking for myself I think, with the greatest respect, these pronouncements are
correct statements of the law and should be followed.

JUDGMENT OF LASSEY J.A.

I am also of the view that this appeal must be dismissed for the reason given.

I only wish to make a short observation on the question whether the prosecution
was bound in this case to have called the prosecution witness Grace Wiredu whose
name was mentioned in the proceedings but who was not available when the trial
began. As my brother Sowah has pointed out, the legal position in this country has
been made clear by our own case law, and I do not think any useful purpose is
served further by an exhaustive review of the English decisions on the same point.

JUDGMENT OF AZU CRABBE J.S.C.

The appellant was convicted at the Criminal Session of the High Court, Accra,
before Koi Larbi J.S.C. (sitting as an additional judge of the High Court) for rape,
contrary to section 97 of the Criminal Code, 1960 (Act 29). He was sentenced to nine
months’ imprisonment with hard labour and now applies for leave to appeal
against the conviction. The court, having treated the application as the appeal and
heard counsel for the appellant, dismissed the appeal, without calling upon counsel
for the Republic, and decided to give reasons for their decision later.

I am giving separate reasons, not because I disagree with my two brethren on the
result of the appeal, but because unlike them, I do not think that the two previous
cases on the calling of witnesses by the prosecution cited to the court contain an
accurate statement of the practice. Again, unlike my two brethren, I do not think
that cases decided subsequent to the two cases cited adequately recognise the

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discretion which the prosecutor has in the calling of witnesses. In my view, this
appeal provides the opportunity for the court to restate the correct practice as
clearly as it can be so as to reflect the modern trend in this aspect of the criminal
law. And though I am unable to carry the other members of the court with me, I am
undaunted in the task I am about to undertake.

The facts upon which the prosecution relied are quite simple and may be shortly
stated, On 18 March 1969 the prosecutrix, Mary Acquah, who was a pupil at the
Police Depot Middle School, was walking home from school when she was called
by a certain female police officer, referred to in the evidence as Miss Elizabeth
Quaye. The prosecutrix did not respond. On 21 March 1969 as the prosecutrix was
walking from school with three friends, she again saw Miss Elizabeth Quaye who
called the prosecutrix into her room. It was alleged that the appellant also entered
the room, and, after whispering to Miss Elizabeth Quaye, he left. Miss Elizabeth
Quaye then took the prosecutrix into the appellant’s room and left the appellant and
the prosecutrix alone in that room. The appellant shut his door and had sexual
intercourse with the prosecutrix against her will. The prosecutrix struggled with the
appellant, and in the course of this struggle, she sustained scratches on her thighs
and neck. After the intercourse, she left the room and immediately complained to
her friends, who were waiting for her outside. Just at this time, a police sergeant
came to the spot and the prosecutrix told him what the appellant had done to her.
The prosecutrix subsequently reported the matter to her father, who took her to the
Korle Bu Hospital; but the medical officer at the hospital said she was too busy to
attend to the prosecutrix. As a result, the prosecutrix was sent to the Tesano Clinic,
which was a private clinic run by Dr. E. R. Asiedu. At the trial Dr. Asiedu testified
as follows:
“On the 21st day of March, 1969, I examined a girl by name Mary Acquah, it was
about 8.45 p.m. My findings — she was a well developed girl between 15 and 18
years of age. She looked intelligent — when I examined her I found a few scratches on
the left arm and both thighs — these were consistent with fingernail injuries. I
further examined the genital area — that is, the area of the vagina-the hymen was
absent — there was no sign of recent tear or haemorrhage. There was some milk-like
fluid in the vagina — this could have been produced by the girl or from outside —
conducted microscopic examination of the fluid and I found dead sperms — that is
male germ — which could only be produced by males. The time was 8.45 p.m. when I
examined the girl and it could have been produced that day.”

All the prosecution witnesses who saw the prosecutrix soon after her ravishment
gave evidence of her distressed state. The police sergeant to whom the prosecutrix
made the complaint, told the court that, standing on the verandah in front of his
room, he could clearly see the course of events from the moment the prosecutrix left
the appellant’s room. He substantially confirmed the prosecutrix’s story relating to
incidents after the alleged intercourse.

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The defence was a complete denial. The appellant said that the prosecutrix was
never in his room and denied having had any sexual intercourse with her. He,
however, admitted that the prosecutrix borrowed a hymn book from him, and that
when she brought it back to him she did not enter his room. He met her on the
verandah where she handed the hymn book to him. He called a witness, his friend,
Constable Timothy Kingsley Manford, who testified that he was with the appellant
practising music at the material time, and that during that period the prosecutrix
never entered the room of the accused. After a thorough and careful summing-up
by the learned trial judge the jury retired, and within ten minutes, they returned a
unanimous verdict of guilty of rape.

In the appellant’s notice of application for leave to appeal against conviction the
following grounds are alleged:
“(i) The verdict was unreasonable and cannot be supported having regard to the
conflicting evidence and statements on the record.
(ii) The judge misdirected the jury in point of law since he did not put the conflicts in
the prosecution’s case to the jury.
(iii) The judge did not put or adequately put the defence of the accused person to the
jury during his summing-up.
(iv) The prosecution did not call all the witnesses whose names appeared on the
indictment, thus preventing the accused person from having the benefit of cross-
examining them to establish his innocence and thus leading to a miscarriage of
justice.”

I can deal briefly with grounds (i), (ii) and (iii). It has often been held in several
cases that where (1) there was evidence to go to the jury, (2) there had been no
serious misdirection or irregularity such as “deprives the accused of the substance
of fair trial and protection of the law” and (3) the verdict is one which a reasonable
jury could arrive at, it is not for this court to interfere, even though we may feel that
we might have come to entirely different conclusion ourselves: See R. v. McGrath
[1949] 2 All E.R. 495, C.C.A. and State v. Lawman [1961] G.L.R. (Pt. II) 698 at p. 708,
S.C. In this case, the summing-up was unimpeachable, and there was ample
evidence upon which a reasonable jury could have convicted. Consequently, I do
not feel we ought to interfere with the verdict on these three grounds.

The fourth and last ground raises a more serious and interesting problem. This
ground is based upon the evidence of the seventh witness for the prosecution,
Detective Sergeant E. K. Helegbe, who said that one of the prosecution witnesses,
Grace Wiredu had failed to attend court, though she had been served with a
subpoena nearly twelve months before the trial began. The record of proceedings
does not disclose that there were, besides Grace Wiredu, other witnesses at the
preliminary investigation whose names appear as witnesses for the prosecution
endorsed on the information, who were not called by the prosecution at the trial or
offered ‘ for cross-examination by the defence.

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In his argument before us counsel for the appellant submitted that there were
authorities in support of the proposition that all witnesses whose names appear on
the bill of indictment should be called by the prosecution. Counsel cited two cases
for this submission: (1) R. v. Chigeri (1937) 3 W.A.C.A. 201, and (2) R. v. Kelfalla
(1939) 5 W.A.C.A. 157. In R. v. Chigeri (supra) counsel for the Crown had expressed
himself unable to support the conviction on three grounds, the first of which was
that although some four witnesses, besides those called at the trial, had given
evidence at the preliminary inquiry, the trial judge had given permission to the
prosecution not to call these four witnesses but to offer them to the accused should
he wish to have their evidence. In its judgment quashing the conviction the court,
though it did not find it necessary to decide whether the conviction should be
quashed on this specific ground, dealt fully with it and referred to the following
dictum of Lord Hewart C.J. delivered during counsel’s argument in R. v. Dora
Harris [1927] 2 K.B. 587 at p. 590, C.C.A.:
“In civil cases the dispute is between the parties and the judge merely keeps the ring,
and the parties need not call hostile witnesses, but in criminal cases the prosecution
is bound to call all the material witnesses before the Court, even though they give
inconsistent accounts, in order that the whole of the facts may be before the jury ...”

The court further referred to two conflicting passages in Archbold, Criminal

Pleading, Evidence and Practice, (29th ed.) at pp. 494-495 and then quoted the
following passage from Volume 9 of Halsbury’s Laws of England, (2nd ed.), para.
232:
“All the witnesses whose names are on the back of the indictment should be called by
the prosecution. Even if it is not proposed to call a witness whose name is at the back
of the indictment, counsel for the prosecution should, unless there are reasons to the
contrary, place him in the witness-box so that the defendant may have an
opportunity of cross-examining him.”

The court approved this passage with the following observation at p. 202, “In our
opinion this paragraph contains a correct statement of the usual and proper practice
on the point we are now considering.”

In R. v. Kelfalla (1939) 5 W.A.C.A. 157 the court confirmed its previous decision in
R. v. Chigeri (supra), and stated categorically that the practice as laid down in the
earlier case should as a general rule be followed in British West Africa, unless there
was an express enactment to the contrary. These are the actual words of the court at
pp. 158-159:
“We now endorse the opinion then expressed and state that it is intended as a guide
to all Courts to which an appeal lies to this Court in order to resolve a doubt which is
apparent on the face of the English decisions and text books. For instance in 1847 in
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the case of the Queen v. Barley (2 Cox Cr.Cas. 191) Chief Baron Pollock, after
consulting Coleridge J. decided in favour of the view taken in the above quotation
from Halsbury. On the other hand in a number of other cases a contrary decision was
given. The last of them which we have been able to find reported is Reg. v. Thompson
in 1876 (13 Cox Cr.Cas. 181). We opine that the reason there are no recent decisions
on the point is that for many years now the practice as laid down in Halsbury has
been followed in England, and we think it should be generally followed in British
West Africa, subject to possible legislation to the contrary.”

Two questions which arise from a consideration of R.v. Chigeri and R.v. Kelfalla
are: (1) whether the practice approved in these two cases is the correct procedure,
and (2) if it is, whether it ought still to be followed in this country. The first question
arose in a neat form in Yeboah v. R. (1954) 14 W.A.C.A. 484, where the appellant
complained that some witnesses at the preliminary investigation, whose names
appeared as witnesses for the prosecution endorsed on the information and whose
evidence conflicted with other prosecution witnesses, were not called by the
prosecution at the trial or offered for cross-examination by the defence. Dealing
specifically with this point, Coussey J.A. who delivered the judgment of the court
said at pp. 486-487:

“As to the second point, evidence at the preliminary investigation related to the
killing of three persons. Twenty-two witnesses gave evidence before the committing
Magistrate, some testifying to one incident and some to another, each incident being
isolated from the others in the general fracas. The names of all twenty-two witnesses
appeared at the back of each of the three informations. In the case of the appellant
only those witnesses who could give evidence relevant to the charge against him were
called by the prosecution. From the standpoint of the prosecution no purpose would
have been served by offering the evidence of the remaining witnesses on the back of
the information and who would testify in one or other of the other charges of murder
to be separately tried against persons other than the appellant. In these circumstances
it does not appear to us that in strictness it was necessary to call those witnesses
although the prosecution might have offered them for the appellant to cross-
examination but omitted to do so.”

Thus, in Yeboah v. R. the court does not appear to have accepted as altogether
correct the procedure that was laid down in the two earlier cases of R. v. Chigeri
and R. v. Kelfalla.

It seems to have been the recognised practice for some years both in this country
and in England, that the prosecution are bound either to call or tender for cross-
examination all witnesses who give evidence at the committal proceedings and
whose names appear on the indictment. I do not mean any disrespect to the
distinguished judges of the West African Court of Appeal who decided the cases
already referred to if I say that in none of them were the relevant authorities

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considered, particularly decisions of the Privy Council which were binding upon
them.

Before 1847 the position was somewhat unclear, and the practice varied with
individual judges. In that year in R. v. Woodhead (1847) 2 Car. & Kir. 520, Alderson
B. (as quoted by Lord Thankerton in Adel Muhammed El Dabbah v. Attorney-
General for Palestine [1944] A.C. 156 at p. 168, P.C.) said:
“You are aware, I presume, of the rule which the judges have lately laid down, that a
prosecutor is not bound to call witnesses merely because their names are on the back
of the indictment. The witnesses, however, should be here, because the prisoner might
otherwise be misled; he might, from their names being on the bill, have relied on your
bringing them here, and have neglected to bring them himself. You ought, therefore,
to have them in court, but they are to be called by the party who wants their evidence.
This is the only sensible rule.”

When counsel for the prisoner asked him if he was to understand that if he called
them he would make them his own witnesses, Alderson B. replied: “Yes certainly.
That is the proper course, and one which is consistent with other rules of practice.
For instance, if they were called by the prosecutor, it might be contended that he
ought not to give evidence to show them unworthy of credit, however falsely the
witnesses might have deposed.”

In R.v. Edwards (1848) 3 Cox C.C. 82, Erle J. said at p. 83:

“My own impression is clear, and I believe a majority of the judges have distinctly
decided that the counsel for the prosecution is not bound to call all the witnesses at
the back of the bill. He is a minister of public justice, and is called upon to lay such
facts before the jury as he thinks the interests of justice demand.”
Later he again said at the same page, “There are, no doubt, cases in which a judge
might think it a matter of justice so to interfere; but, generally speaking, we ought to
be careful not to overrule the discretion of counsel, who are, of course, more fully
aware of the facts of the case than we can be.”

“In 1858, Parke B. stated in R. v. Cassidy (1858) 1 F. & F. 79, what he considered to
be the correct principle: “that the counsel for the prosecution should call what
witnesses he thought proper, and that, by having had certain witnesses examined
before the grand jury whose names were on the back of the indictment, he only
impliedly undertook to have them in court for the prisoner to examine them as his
witnesses. He would, therefore, follow the course said to have been pursued by
Campbell C.J., . . . who had ruled that the prosecutor was not bound to call such a
witnesses, and that if the prisoner did so, the witness should be considered as his
own.”

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Cresswell J. expressed his agreement with this view, when he was consulted by
Parke B. (See the opinion of Lord Thankerton in Adel Muhammed El Dabbah v.
Attorney-General for Palestine, (supra), at pp. 168-169, P.C.)

A case which is of special significance in the development of the law on the point is
Seneviratne v. R. [1936] 3 All E.R. 36, P.C. because it was decided a year before R.v.
Chigeri, and a full three years before R.v. Kelfalla. Besides, it was a Privy Council
decision which was binding on the West African Court of Appeal. In that case Lord
Roche, in delivering the opinion of the Board, made this pertinent observation at pp.
48-49:
“Their Lordships do not desire to lay down any rules to fetter discretion on a matter
such as this which is so dependent on the particular circumstances of each case. Still
less do they desire to discourage the utmost candour and fairness on the part of those
conducting prosecutions; but at the same time they cannot, speaking generally,
approve of an idea that a prosecution; but at the same time they cannot, speaking
generally, approve of an idea that a prosecution must call witnesses irrespective of
considerations of number and of reliability, or that a prosecution ought to discharge
the functions both of prosecution and defence.”

This case, which emphasizes the discretion of the prosecutor to call witnesses was
not referred to by the West African Court of Appeal in its two decisions in R. v.
Chigeri and R. v. Kelfalla. In R. v. Chigeri the court was only content to quote with
approval the dictum of Lord Hewart C.J. in R. v. Dora Harris (supra) which it had
itself said in 1935 in R. v. Adebanjo (1935) 2 W.A.C.A. 315 at p. 320, should be
confined to the particular facts of that case.

The second Privy Council case is that of Adel Muhammed El Dabbah v. Attorney-
General for Palestine [1944] A.C. 156, P.C. which was not referred to in Yeboah v. R.
(supra). At the trial in Adel Muhammed El Dabbah v. Attorney-General for
Palestine, the prosecution refused to call, or to tender for cross-examination, two
witnesses whom they described in their own case as having been called before the
examining magistrate. The trial judge ruled that there was no obligation on the
prosecution to call those witnesses. On appeal, the Supreme Court of Palestine,
sitting as the Court of Criminal Appeal, held that though the strict position in law
was that it was not necessary legally for the prosecution to put forward these
witnesses, yet the better practice was that the witnesses should be tendered at the
close of the case for the prosecution so that the defence could cross-examine them if
they wished. They laid down as a rule of practice that in future the practice of
tendering witnesses should be generally followed in all courts. Before the Privy
Council, counsel for the appellant relied on the observations of Lord Hewart C.J. in
R. v. Dora Harris (supra) and on the law as stated in Halsbury’s Laws of England

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(2nd ed.), Vol. 9, para. 232, p. 164, and submitted that all the witnesses on the back
of the information should have been called by the prosecution so that the appellant
could have the opportunity of examining them. Dealing first with the practice
which the Supreme Court of Palestine purported to lay down to be followed in the
future, Lord Thankerton, who delivered the opinion of the Board said at p. 168:
“While their Lordships agree that there was no obligation on the prosecution to
tender these witnesses, and, therefore, this contention of the present appellant fails,
their Lordships doubt whether the rule of practice as expressed by the Court of
Criminal Appeal sufficiently recognises that the prosecutor has a discretion, as to
what witnesses should be called for the prosecution, and the court will not interfere
with the exercise of that discretion, unless, perhaps, it can be shown that the
prosecutor has been influenced by some oblique motive.”

Later Lord Thankerton referred to R. v. Woodhead (supra) and R.v. Cassidy (supra)
and said at p. 169:
“It is consistent with the discretion of counsel for the prosecutor, which is thus
recognised, that it should be a general practice of prosecuting counsel, if they find no
sufficient reason to the contrary, to tender such witnesses for cross-examination by
the defence, and this practice has probably become even more general in recent years,
and rightly so, but it remains a matter for the discretion of the prosecutor.”
Finally, his Lordship referred to the observations of Lord Hewart C.J. in R. v. Dora
Harris (supra) and said at p. 169, “In their Lordships’ view, the learned chief justice
could not have intended to negative the long-established right of the prosecutor to
exercise his discretion to determine who the material witnesses are.”

It seems clear that the practice of calling witnesses by the prosecution as laid down
in R. v. Chigeri (supra) and R. v. Kelfalla (supra), is at variance with the practice
which the Privy Council has laid down in Seneviratne v. R. (supra) and in Adel
Muhammed El Dabbah v. Attorney-General for Palestine (supra). There can be no
doubt that the decisions of the West African Court of Appeal in R. v. Chigeri and R.
v. Kelfalla concerning the duty of the prosecution to call witnesses, were given per
incuriam, and ought not to be followed. And Yeboah v. R. is the only authority for
the proposition that the prosecution are not bound to call a witness whose evidence
in their opinion is not relevant to the charge, though that witness’s name is on the
back of the indictment. But that case does not, in my view, sufficiently recognise the
general discretion of the prosecution in the calling of witnesses. In R. v. Mansu
(1947) 12 W.A.C.A. 113, where counsel for the appellant half-heartedly attempted to
argue that the absence of a relevant witness, who might have given evidence on
behalf of the Crown, entitled the appellant to acquittal, Harragin C.J. who delivered
the judgment of the court observed at p. 114,

“the law on the subject is clearly set out in the case of Adel Muhammed El Dabbah v.
The Attorney-General for Palestine ... This would appear to settle the matter finally,

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and the only reason why attention is called to it in this case is the fact that Counsel
so frequently take this point on appeal.”

The authorities on the question were recently reviewed exhaustively by the English
Court of Criminal Appeal in R. v. Oliva (1965) 49 Cr.App .R. 298, C.C.A. and after
the court had concluded its examination of the crucial pronouncements in R. v.
Woodhead (supra); R. v. Edwards (supra) and R. v. Cassidy (supra) it observed at p.
307, “It seems to this court that once this rule of practice was laid down in 1847, it
has continued in full force and remains in full force to this day.” The court then
proceeded to state the rule at pp. 309-310:
“Accordingly as it seems to this court, the principles are plain. The prosecution must
of course have in court the witnesses whose names are on the back of the indictment,
but there is a wide discretion in the prosecution whether they should call them and
examining them, or calling and tendering them for cross-examination. The
prosecution do not, of course, put forward every witness as a witness of truth, but
where the witness’s evidence is capable of belief, then it is their duty, well recognised,
that he should be called, even though the evidence that he is going to give is
inconsistent with the case sought to be proved. Their discretion must be exercised in
a manner which is calculated to further the interest of justice, and at the same time be
fair to the defence. If the prosecution appear to be exercising that discretion
improperly, it is open to the judge of trial to interfere and in his discretion in turn to
invite the prosecution to call a particular witness, and, if they refuse, there is the
ultimate sanction in the judge himself calling that witness.”

In my opinion this passage contains a correct statement of the proper practice on the
point at issue, and I think that, subject to any enactment to the contrary, it is the
practice which ought to be followed in this country.

The prosecution are not obliged to call witnesses whom they do not believe to be
witnesses of truth: R. v. Twumasi-Ankrah (1955) 14 W.A.C.A. 673 and R. v. Collier
[1958] Crim. L. R. 544, C.C.A. Neither are they bound to call a witness who is
outside Ghana, or who is critically ill, or who cannot be traced. If counsel for the
prosecution will not call a witness whose name is on the back of the indictment the
trial judge has a complete discretion to do so: See R. v. Simmonds (1823) 1 C. & P.
84; the Courts Decree, 1966 (N.L.C.D. 84), paras. 67 (1) and 72 (now the Courts Act,
1971 (Act 372), ss. 53, 54 and 58).

In this case I do not think that the prosecution were bound to call Grace Wiredu as a
witness or tender her for cross-examination by the defence. Accordingly ground (iv)
must also fail.

In the result, I would also dismiss the appeal.

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